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Don’t Look for Team Biden to Favor Framers’ Constitution

Eternal vigilance, we know, is the price of liberty.

Those of us who had hoped to see Donald Trump reelected to a second term were concerned when it appeared that that vigilance was prevented by some who sought to bar Republican observers from properly monitoring the 2020 election.

We worried that diminished vigilance may have facilitated chicanery.

So far, — however — courts and legislatures have failed to find actionable evidence of voter fraud.

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Does it thus appear that in January Congress will formally declare Joe Biden the president of the United States?

Some of Mr. Biden’s supporters believe that he will be the most “Progressive” of presidents, and it is likely that Barack Obama’s vice president will bring back into the federal government the policies that characterized Mr. Obama’s term.

If this is the case, the need for vigilance for the next four years will be even more profound, because, as David Bernstein showed in his remarkable book on the Obama years, the Obama/Biden administration was the most “Lawless” in memory.

Professor Bernstein argued persuasively that Mr. Obama flouted the Constitution’s allocation of governmental powers, as more of President Obama’s actions were reversed by U.S. Supreme Court decisions than those of any modern president.

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For much of his presidency, Obama could not get his policies easily implemented by legislation, so that he proceeded, in effect, to make “law” by executive order, (“‘I’ve got a pen and I’ve got a phone”) thus violating the Constitution’s scheme of separation of powers.

Though some Obama directives were thrown out by the Supreme Court, even in President Trump’s term a few, including some of Mr. Obama’s actions with regard to immigration, have been upheld by the federal courts.

It is likely that a President Biden will be encouraged, once again, to push executive power to its limits, and it is far from clear that the judiciary will reign these measures in.

The most worrisome aspect of a “Progressive” Biden/Harris administration is that it will be not only a repudiation of what President Trump has accomplished, but a repudiation of the conservative constitutional ideology of the rule of law that actually did lie behind the Trump administration.

Given that Progressives appear to believe there are no limits on the power of the federal government, and that it ought to be the job of that government to regulate and facilitate the lives of all Americans from cradle to grave, the potential to override the Framers’ scheme of a federal government with limited and enumerated powers is terrifying. Mr. Biden’s toying with a nationwide “mask mandate” to fight the coronavirus might be a hint of what is to come.

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An independent judiciary is supposed to be the cornerstone of the rule of law in this country, but the possibility that the Democrats will increase the number of Supreme Court Justices until they have a majority committed to their Progressive view of the Constitution is equally alarming.

Donald Trump employed a conservative approach that favored national interests over globalism, as he ended deleterious arrangements such as the Paris Climate Agreements and NAFTA, which put American industry at a disadvantage, and tended to export our jobs abroad.

Mr. Biden appears to be a committed globalist, and may well try, as Mr. Obama did, to forge international agreements through executive action rather than seeking to put treaties before the Senate.

Progressives claim to be committed to diversity and equality, but, in the Obama administration, favored industries (such as “green energy”) and favored constituencies (such as labor unions) appeared to have advantages that went beyond what the law allowed.

Those expressing views unfavorable to the Obama administration found that their ability to secure tax exemptions for their charitable organizations was stymied, as the IRS was weaponized against them.

Donald Trump reversed some of the regulations the Obama administration had used to enforce politically correct policies against colleges and universities.

We should probably anticipate attempts, for example, once again to remove due process protections for those accused of sexual misconduct, and once again to restrict speech on campuses lest tender student sensibilities be offended.

There’s much more to fear, given that we can expect Progressives to reduce the influence of religion in the public square, to favor redistribution rather than property rights, to favor open borders rather than a merit system for immigration, and, in general, to favor direction from the top down instead of trusting in popular sovereignty and the wisdom of the American people.

Given that we now have a national media committed to Progressivism, those who favor the Framers’ Constitution, those who believe that our heritage and traditions embody timeless truths about government and human nature, are challenged as never before.

If a President Joe Biden really wants to preserve national unity — and the Constitution — he must not be Obama 2.0.

By: Professor Stephen Presser

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This article originally appeared on Newsmax and is being republished with the author’s permission.

Stephen B. Presser is the Raoul Berger Professor of Legal History Emeritus at Northwestern’s Pritzker School of Law, the Legal Affairs Editor of Chronicles: A Magazine of American Culture, and a contributor to The University Bookman. He graduated from Harvard College and Harvard Law School, and has taught at Rutgers University, the University of Virginia, and University College, London.

He has often testified on constitutional issues before committees of the United States Congress, and is the author of “Recapturing the Constitution: Race, Religion, and Abortion Reconsidered” (Regnery, 1994) and “Law Professsors: Three Centuries of Shaping American Law” (West Academic, 2017). Presser was a Visiting Scholar in Conservative Thought and Policy at the University of Colorado’s Boulder Campus for 2018-2019.